Kevin B. Phillips

The appellant appealed a Small Claims Court decision dismissing its claims for fraud and conspiracy against a former employee and a supplier.

The employee had arranged for the supplier to provide gifts to employees in lieu of overtime pay, using falsified invoices to conceal the purchases from the corporate parent.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusions that the company suffered no actual damage and that the defendants lacked the requisite intent to cause harm.

The court also rejected the appellant's argument that the trial judge's comments during the hearing created a reasonable apprehension of bias.

The parties brought a motion concerning the implementation of a mediated final separation agreement.

A dispute arose over whether the respondent could deduct disputed special or extraordinary expenses under s. 7 of the Federal Child Support Guidelines from child support payable to the applicant.

The court held that permitting unilateral offsets against child support would undermine the predictability and regularity of support payments and could create arbitrariness and conflict contrary to the best interests of the children.

The agreement was ordered into effect with amendments removing the offset provision and requiring proof of payment for reimbursement of extraordinary expenses.

Additional financial adjustments and administrative orders were made, and each party was ordered to bear their own costs.

The accused applied for leave to cross-examine the police affiant and sub-affiants who swore the Information to Obtain supporting a search warrant in a drug trafficking investigation.

The defence argued that police unlawfully entered a secured apartment building hallway without permission and failed to adequately disclose this warrantless entry in the ITO.

The Crown contended that the accused had no reasonable expectation of privacy in the building’s common areas and that the issue was irrelevant.

The court held that reasonable expectations of privacy in apartment building hallways must be determined contextually and that possible police trespass and non-disclosure could be relevant to assessing the validity of the authorization.

Leave to cross-examine the affiant and sub-affiants was granted.

Following a two-day family law trial determining the quantum of spousal support, the court addressed costs.

The applicant spouse had obtained a result more favourable than her pre-trial settlement offer and was found to be entirely successful at trial.

Applying Rules 24(11) and 18(14) of the Family Law Rules, the court held that the presumption in favour of costs to the successful party applied and that the respondent’s intransigence necessitated the trial.

After reviewing the bill of costs and applying an overall reasonableness standard rather than a line‑by‑line assessment, the court fixed costs payable by the respondent.

Following a motion concerning child support, parenting access, and sale of the matrimonial home, the court addressed the issue of costs.

The applicant had been entirely successful on the earlier motion.

The applicant argued that the respondent acted in bad faith by unilaterally ceasing child support and allegedly pursuing the motion for tactical advantage.

The court rejected allegations of bad faith but applied the presumption under Rule 24(1) of the Family Law Rules that the successful party is entitled to costs.

Costs were fixed in favour of the applicant for responding to the motion.

Following a summary judgment ruling arising from a failed real estate transaction, the court addressed the issue of costs.

The plaintiffs had succeeded in obtaining damages for losses arising from the defendant’s failure to complete an agreement of purchase and sale, including damages for the resale loss and partial recovery of special damages.

The court considered the parties’ settlement offers, the degree of success, and the factors under Rule 57.01 of the Rules of Civil Procedure.

While the plaintiffs achieved overall success, the defendant’s litigation conduct was not unreasonable and included meaningful settlement offers and appropriate admissions.

The court awarded partial indemnity costs to the plaintiffs in a fixed amount.

The applicant brought an interim family law motion seeking sole custody of three children, child support based on imputed income, and permission to relocate with the children from Ottawa to Edmonton.

The court applied the best interests test under s. 24 of the Children’s Law Reform Act and found that the parties’ inability to communicate made joint custody inappropriate, granting the applicant interim sole custody with defined access to the respondent.

The court declined to impute income under s. 19 of the Child Support Guidelines and ordered interim child support based on the respondent’s reported reduced income.

Applying the mobility framework from Gordon v. Goertz, the court found that relocation would significantly disrupt the children’s relationship with the respondent and their established community.

The relocation request was therefore denied.

The Crown applied under s. 657.3 of the Criminal Code to have a prior Charter ruling from a first trial applied to a second trial after the first proceeding ended in a mistrial.

The mistrial had been declared when the trial judge disclosed a personal relationship with a key investigating officer, giving rise to a reasonable apprehension of bias.

The Crown argued that, pursuant to s. 653.1 of the Criminal Code, evidentiary and Charter rulings made before the merits stage should remain binding in the retrial unless contrary to the interests of justice.

The court held that the integrity of the justice system and the requirement of impartial adjudication outweighed efficiency concerns.

Given the risk that the public might perceive the earlier ruling as tainted by unconscious bias, the Charter application should be reheard.

In a joint prosecution for drug trafficking and firearm possession, the accused brought a motion seeking disclosure of police occurrence reports relating to prior charges against each accused that had been withdrawn, stayed, or resulted in acquittals.

The request was framed as a third‑party records application under the regime established in R. v. O’Connor.

The court considered whether such materials met the first‑stage threshold of “likely relevance” in relation to credibility, character, and propensity issues anticipated at trial where each accused intended to blame the other.

The court held that occurrence reports relating to withdrawn allegations of drug trafficking and possession of stolen property could meet the low threshold of logical relevance for disclosure purposes.

Production to the court of limited police synopsis “front sheets” relating to the withdrawn charges was ordered for judicial review, subject to Crown redactions for privilege and a later balancing of privacy interests against the right to full answer and defence.

On a family law motion, the court addressed three issues: recommencement of child support payments, a request to vary an existing access schedule, and a request for sale of the matrimonial home under the Partition Act.

The respondent had unilaterally reduced and then ceased child support payments despite an earlier informal agreement between the parties.

The court ordered the respondent to resume interim child support payments based on the amount he had most recently paid.

The request to vary access was denied on the basis that the status quo should be preserved pending a trial scheduled in the near future.

The request for partition and sale of the matrimonial home was also denied because the applicant had a prima facie claim for exclusive possession and the sale could prejudice unresolved property and equalization issues to be determined at trial.

The plaintiffs moved for summary judgment following the defendant’s failure to close an unconditional agreement of purchase and sale for a farm property.

The defendant admitted breach but argued the plaintiffs failed to mitigate their damages by relisting the property in the fall rather than waiting until spring and by failing to move back into the property to reduce carrying costs.

The court applied the principles from Hryniak v. Mauldin regarding summary judgment and held there was no genuine issue requiring a trial.

The plaintiffs acted reasonably in relisting the property promptly and accepting the first reasonable offer.

However, the court reduced certain ancillary damages due to partial failure to mitigate, ultimately awarding damages reflecting the resale price difference and several carrying costs.

In estate litigation concerning whether $1.3 million transferred by a deceased to the defendant was a loan or gift, the defendants sought costs related to steps taken to remove the plaintiffs’ original counsel due to an alleged conflict of interest arising from counsel’s participation in discussions with the deceased before death.

The court held that the defendant was entitled to costs because the plaintiffs ultimately conceded the removal of counsel after significant preparation had already been undertaken.

However, the court found the circumstances did not justify substantial indemnity costs, emphasizing that no party’s conduct was reprehensible and that the motion itself would not have been complex.

Costs were therefore awarded on a partial indemnity basis in the amount of $15,000 inclusive of disbursements and taxes.

The court also directed that the defendant’s request for leave to bring a late dependant’s relief claim under the Succession Law Reform Act should be determined at trial rather than through a separate pretrial motion.

Following the breakdown of a long traditional marriage, the court was required to determine the quantum and duration of spousal support where entitlement was conceded.

The applicant had largely remained out of the workforce during the marriage to care for the children and maintain the household, while the respondent advanced a successful career.

The court found the applicant suffered economic disadvantage arising from the marriage and was entitled to compensatory support under s. 15.2 of the Divorce Act.

Applying the Spousal Support Advisory Guidelines, the court ordered staged monthly support, including an initial reduced amount while the applicant occupied the matrimonial home rent‑free, followed by higher support and later reduced support with income imputed to the applicant after 12 months.

Retroactive spousal support was also awarded dating back to shortly after the respondent was placed on notice of the claim.

The applicant brought a motion to set aside a marriage contract under s. 56(4) of the Family Law Act, alleging insufficient financial disclosure, lack of independent legal advice, duress, and unconscionability.

The court applied the two-stage analysis for nondisclosure in domestic contracts and found that the alleged undisclosed savings were known to the applicant and were not significant in the circumstances.

The court also rejected arguments that the applicant did not understand the contract or signed under duress, noting his high level of education and experience.

The evidence demonstrated that the parties had comparable financial positions and maintained separate assets consistent with the agreement.

The court concluded the marriage contract was valid and enforceable.

A parenting dispute concerning custody, access, child support, and a restraining order under the Children’s Law Reform Act.

The court assessed the best interests of the child, including stability, the child’s relationship with each parent, and the caregiving environment provided by the maternal grandparents.

Sole custody was granted to the mother to preserve stability in decision‑making, while the father received structured parenting time to maintain a meaningful relationship with the child and his half‑siblings.

The court declined to impute the higher income sought by the mother, instead imputing minimum‑wage income for child support purposes.

A restraining order limiting contact between the parents was granted, largely to reduce conflict and support the parenting arrangement.

The applicant brought an urgent ex parte motion seeking exclusive possession of the matrimonial home and a restraining order against the respondent spouse.

The motion was based on affidavit evidence alleging escalating verbal threats, physical violence, and threats to destroy the home following the breakdown of the relationship.

Applying s. 24 and s. 46(1) of the Family Law Act, the court considered the best interests of the children, the parties’ financial circumstances, the parties’ domestic contract regarding the property, availability of alternative accommodation, and allegations of violence.

The court found there was evidence of a significant risk of harm if the parties remained in the same residence and granted interim interim exclusive possession and a restraining order pending a full hearing with notice.

The accused applied for a bail review under s. 522 of the Criminal Code after previously being detained on the secondary ground following a multi‑day show cause hearing.

The charges arose from an alleged group assault that left the victim with severe and life‑threatening injuries.

The court considered whether there had been a material change in circumstances and whether detention remained necessary under the secondary or tertiary grounds in s. 515(10).

The judge found the evidence against the accused relatively weak, consisting largely of presence at the scene and hearsay evidence of motive, with little direct evidence of personal participation.

A revised release plan involving residence with two sureties providing full‑time supervision constituted a material change sufficient to mitigate concerns about further offences or interference with the administration of justice.

Two defendants pleaded guilty to criminal offences arising from their conduct following the accidental death of a 16-year-old boy who was skateboarding on an unlit highway at night.

The defendants struck the victim with a pickup truck, discovered his body in the truck bed, and then transported the body to a skateboard park to stage a skateboarding accident before calling 911 with a false report.

The court imposed consecutive jail sentences emphasizing denunciation and deterrence as paramount sentencing objectives, while acknowledging the defendants' youth, remorse, and rehabilitation prospects.

The accused was charged with impaired driving, dangerous driving, and refusing to provide a breath sample following a serious driving incident on July 18, 2012.

The accused brought a Charter application seeking exclusion of evidence based on alleged violations of sections 7, 9, and 10(b) of the Canadian Charter of Rights and Freedoms.

The court found breaches of the Charter regarding the timing of the breath demand and the provision of rights to counsel, but declined to exclude any evidence.

The court found that the accused's extreme intoxication rendered any Charter breaches of negligible effect on his actual interests, and that the police acted in good faith throughout.